12-001959 Shane Henry vs. Csx Transportation, Inc., And Department Of Transportation Status: Closed Recommended Order on Friday, October 26, 2012.

Summary: Respondent CSX Transportation demonstrated that rail efficiency and safety would be enhanced by closure of the public railroad-highway grade crossing at issue in this proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHANE HENRY , )

)

Petitioner, )

)

vs. ) Case No . 1 2 - 1959

)

CSX TRANSPORTATION, INC., AND )

DEPARTMENT OF TRANSPORTATION , )

)

Respondent. )

)

RECOMMEN DED ORDER

A formal hearing was conducted in this case on August 3,

2012 , in Hawthorne , Florida, before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: David Pet rano , Esquire

11502 Southeast U.S. Highway 301

Hawthorne , Florida 3 2640

For Respondent Department of Transportation :

John A. Minnick, Esquire

Susan Schwartz, Esquir e

Department of Transportation

605 Suwannee Street, MS 58

Tallahassee, Florida 32399

For Respondent CSX Transportation, Inc.:

Sara Frances Holl a day - Tobias, Esquire

McGuireWoods, LLP

50 North Laura Street, Suite 3300

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether the Department of Transportation

("Department") may issue a perm it authorizing CSX

Transportation, Inc. ("CSXT") to close public - railroad highway -

grade crossing 627445 - K (the "Crossing") located at SE 222nd

Street in Hawthorne, Florida.

PRELIMINARY STATEMENT

On June 30, 2010, CSXT submitted a Railroad Grade Crossing

Ap plication to close the Crossing as redundant to other

crossings in the vicinity. On October 28, 2010, the Department

issued a Notice of Intent to Permit Closure (the "Notice") to

authorize the closure of the Crossing. On November 15, 2010,

Petitioner Sha ne Henry timely filed a petition opposing the

proposed granting of the permit. On November 17, 2010, the City

of Hawthorne timely filed a petition opposing the granting of

the permit.

On May 30, 2012, the Department forwarded both petitions to

the Divisio n of Administrative Hearings (" DOAH " ) for assignment

of an Administrative Law Judge and the conduct of a formal

administrative hearing . The petition filed by Mr. Henry was

given DOAH Case No. 12 - 1959. The petition filed by the City of

Hawthorne was given DOAH Case No. 12 - 1961. Both cases were

assigned to the undersigned. By order dated June 12, 2012, the

cases were consolidated for hearing. By order dated June 13,

2012, t he case was scheduled for hearing on August 3, 2012.

On July 30, 2012, the City of Hawthorne filed a Notice of

Withdrawal of Petition for a Formal Administrative Hearing,

pending execution of a settlement agreement. By order dated

July 30, 2012, the file in DOAH Case No. 12 - 1961 was closed.

DOAH Case No. 12 - 1959 went forward for hea ring on August 3,

2012, on which date the hearing was convened and completed.

On the morning of August 3, 2012, prior to the convening of

the hearing, the undersigned and the parties conducted an

informal viewing of the site of the Crossing. At the outset of

the hearing, Joint Exhibits 1 and 2 were admitted by

stipulation. 1 /

At the hea ring, the Department presented the testimony of

Janice Bor delon, a Department rail specialist. The Department's

Exhibits 1 through 7 were admitted into evidence. CSXT

pre sented the testimony of Cliff Stayton, its director of

community affairs and safety. CSXT's Exhibit 1 was admitted

into evidence. CSXT also submitted four publications from the

U.S. Department of Transportation without objection as matters

for judicial n otice: "Highway - Railroad Grade Crossings: A Guide

to Crossing Consolidation and Closure" dated July 1994; the

Secretary of Transportation's "Action Plan" for "Highway - Rail

Crossing Safety and Trespass Prevention " dated June 13, 1994;

"Rail - Highway Crossing Safety Action Plan Support Pro posals "

dated May 2004; and the "Railroad - Highway Grade Crossing

Handbook" dated August 2007. Mr. Henry testified on h is own

behalf and offered no exhibits into evidence.

The one - volume transcript of the hearing was filed at DOAH

on August 27, 2012. At the hearing, the parties agreed that

their proposed recommended orders would be filed no later than

30 days after the filing of the transcript. The Department

timely filed its P roposed R ecommended O rder on September 25,

2012. CSXT filed its P roposed R ecommended O rder on October 2,

2012, beyond the agreed time limit for filing of proposed

recommended orders. However, because no party objected to the

late filing, the undersigned has considered CSXT's P roposed

R ecommended O rder in the writing of this R ecommended O rder.

Petitioner Shane Henry did not file a proposed recommended

order.

FINDINGS OF FACT

1. The Department has authority over public railroad -

highway grade crossings in Florida, including the authority to

issue permit s for the opening and closing of crossings.

§ 335.141(1)(a), Fla . Stat . 2 /

2. The Federal Railroad Administration ("FRA") has an

"Action Plan" to improve grade - crossing safety. A key element

of that plan is the consolidation of redundant and unnec essary

highway - rail grade crossings. The FRA's goal is for each state

to reduce railroad crossings by 25 percent.

3 . The Department's criteria for closing railroad - highway

grade crossings are set forth in Florida Administrative Code

Rule 14 - 57.012(2 )(c), as follows:

Closure of Public Railroad - Highway Grade

Crossings. In considering an application to

close a public railroad - highway grade

crossing, the following criteria will apply:

1. Safety.

2. Necessity for rail and vehicle traffic.

3. Altern ate routes.

4. Effect on rail operations and expenses.

5. Excessive restriction to emergency type

vehicles resulting from closure.

6. Design of the grade crossing and road

approaches.

7. Presence of multiple tracks and their

effect upon railroad an d highway operations.

4 . On June 30, 2010, CSXT submitted a Railroad Grade

Crossing Application seeking closure of the Crossing, based on

the redundancy of the Crossing in relation to other available

crossings.

5 . The Crossing is located at SE 222nd S treet in

Hawthorne. 222nd Street is a two - lane urban local road running

north and south, beginning at 69th Avenue and ending at 75th

Avenue. The street crosses CSXT railroad tracks between SE 73rd

Avenue and 74th Lane in a north - south direction . The

sur rounding area consists of residences, a veterinary hospital,

a city - owned park, and some small commercial uses. The railroad

right - of - way at the Crossing is operated by CSXT.

6 . The Crossing includes a timber and asphalt surface over

a single mainline tr ack. It has no sidewalk and is designed for

automobile use only.

7 . The rail speed limit at the Crossing is 20 to 25 miles

per hour. Petitioner, Dr. Shane Henry, is the owner of the

veterinary hospital near the Crossing and was the only

testifying wit ness familiar with the actual movement of the

trains at the Crossing. Dr. Henry credibly testified that their

actual speed at the Crossing is no greater than 5 miles per

hour.

8 . Two local trains pass through the Crossing three times

per week. A Departm ent traffic study showed that 53 vehicles

crossed the track at the Crossing in a 24 - hour weekday period.

No school buses use the Crossing. The posted speed limit for

vehicles at the Crossing is 10 miles per hour.

9 . There are no active warning signals s uch as flashing

lights or crossbars at the Crossing. Reflective crossbuck signs

have been installed at the Crossing to alert drivers that they

are approaching a railroad track. Train crews are required to

sound their horns in warning as they approach the Crossing.

10 . Approximately 264 feet to the east of the Crossing is

another railroad crossing at U.S. 301, which is the main north -

south thoroughfare in Hawthorne. U.S. 301 is a four - lane

highway that is heavily traveled in comparison to SE 222nd

Street .

11 . Approximately 475 feet to the west of the Crossing is

another railroad crossing at SE 221st Street. Southeast 221st

Street is a two - lane north - south connector for Hawthorne's

business district.

12 . The railroad crossings at U.S. 301 and SE 221st Street

have active signals with crossbars lowering and lights flashing

when trains pass.

13 . The Department sent a diagnostic team to examine and

evaluate the Crossing. The team recommended that the Crossing

be closed as redundant to the safer crossings nearby. The

Department presented the proposed closure to the Hawthorne City

Commission at a public meeting on July 20, 2010.

14. Dr. Henry attended the meeting and voiced his

opposition to the closure. Dr. Henry's Lake Area Animal

Hospital is located a t the corner of U.S. 301 and 74th Lane.

The animal hospital is open on Tuesdays and Wednesdays. A small

city park is located across the Crossing from the animal

hospital. Dr. Henry testified that he tells his clients to walk

their pets to the park to ca lm them down. Clients needing stool

or urine samples are also advised to walk their pets to the park

while waiting.

15. Dr. Henry testified that closing the Crossing would

limit his clients' access to the park and force them onto U.S.

301, which is hea vily traveled by vehicles. However, there are

alternative places to walk animals near the hospital that would

not force the clients directly onto U.S. 301, including a side

yard of the hospital premises. Dr. Henry may consider these

less calming for the animals than the park, but they do not

appear to endanger the animals.

16 . In deciding whether to authorize the closure of the

Crossing, the Department considered the seven criteria listed in

r ule 14 - 57.012(2)(c): safety; necessity for rail and vehicle

t raffic; alternate routes; effect on rail operations and

expenses; excessive restrictions to emergency vehicles resulting

from closure; design of the grade crossing and road approaches;

and presence of multiple tracks and their effect on railroad and

highwa y operations. These criteria were considered in light of

the overall objective "to reduce the accident / incident frequency

and severity at public railroad - highway grade crossings, and

improve rail and motor vehicle operating efficiency ."

Fla. Admin. Code R. 14 - 57.012(1).

17. As to the " safety " criterion , the Department's first

consideration was the potential for collisions of vehicles and

trains at the Crossing. The Department made the following

credible findings concerning safety at the Crossing:

The S E 222nd Street crossing is signalized

with crossbucks only (i.e., passive

signalization) without any active warning

devices (i.e., lights and gates). Cautious

drivers would stop at the subject crossing

and look both ways along the track to

determine wheth er a train is approaching and

to estimate its speed. In the event that

following vehicles do not anticipate such

stops and/or fail to maintain safe - stopping

distance, collisions may result. In

addition, the presence of the crossing

itself may cause non - t rain collisions.

Exemplified by a driver stopping suddenly to

avoid collision with an oncoming train, the

driver may lose control of the vehicle and

collide with a roadside object. These types

of potential collisions would be avoided

with the elimination of the crossing.

Currently there are no recorded accidents at

the crossing; however, the opportunity

exists for collisions, train and non - train,

when a crossing exists. Although accident

history is taken into account, it is not the

sole determining fact or, in as much as the

prospective crossing closure has relatively

low vehicular use and, thereby, fewer

accidents. An accident does not have to

occur before considering a crossing closure.

18. Janice Bordelon, a Department rail specialist, was a

member of the Department's diagnostic team. At the final

hearing, Ms. Bordelon testified that the timber and asphalt

surface of the Crossing was in poor condition and could cause a

driver to focus his attention on finding a smooth pathway rather

than looking for oncoming trains .

19. As to the " necessity for rail and vehicle traffic " and

"alternate route" criteria , the Department concluded that the

Crossing is not a necessity for rail or vehicular traffic

because of the ready availability of alternate routes . Th e

Department determined that there were alternate routes and

parallel roads on each side of the Crossing, and residents,

schools, emergency response, and businesses would not be

negatively affected by the closure of the Crossing. Closure of

the Crossing t o vehicular traffic would have no effect on rail

traffic.

20. Florida guidelines for public crossing closures

provide that closure should be considered where there are fewer

than 3,000 vehicles per day using the crossing and where there

are crossings loc ated closer than one - half mile apart. As noted

above, only 53 vehicles were recorded at the Crossing over a 24 -

hour weekday period. The Department determined that rerouting

such a low volume of vehicles to other roads would not have a

significant impact on the level of service of the alternate

routes.

21. The Department specifically considered Dr. Henry's

objections and concluded as follows:

A veterinarian clinic at the corner of 74th

Lane and N. Main Street (US 301/SR 200) has

stated that closure would require their

clients to be rerouted onto N. Main Street

(US 301/SR 200), a more hazardous route.

However, a timing study of the location

shows that clients visiting the clinic have

a safe alternate by traveling one block

south on SE 222nd Street to 75th Avenue and

proceeding north on SE 221st Street or south

on Johnson Street. This route takes less

than two minutes and does not require

traveling onto N. Main Street (US 301/SR

200).

22. Ms. Bordelon testified that she performed the

referenced timing stu dy and confirmed the findings thereof. She

stated that alternative routes are simple to find in Hawthorne

because the city's streets are laid out in grid fashion. There

are parallel roads on either side of the Crossing, and the

closing of the Crossing wo uld not leave any property landlocked.

23. Ms. Bordelon's timing study established that there are

at least two alternate routes for vehicles, each of which would

add a driving time of less than two minutes. As noted above,

the 221st Street crossing is ab out 475 feet from the Crossing

and the U.S. 301 crossing is about 264 feet from the Crossing,

providing nearby alternatives to the Crossing after its closure.

24. As to the "effect on rail operations and expenses"

criterion , the Department made the follow ing findings:

The elimination of the rail crossing at SE

222nd Street would benefit the Railroad and

the City in the reduction of liability and

maintenance expenses. The removal of the

crossing would eliminate the cost of

upgrading and maintaining the cro ssing. The

Department's Code of Federal Regulations

(CFR) Part 130 funds are annually

distributed and utilized on crossings within

each District based on a diagnostic team's

evaluation of the prioritized crossings'

need for safety enhancement. 3

Hawthorne has been the recipient of a major

safety project with the construction of the

$42 million grade separation project at SR

20/Hawthorne Road and US 301/SR 200. The

Department has also scheduled a $375,000

crossing surface project at US 301/SR 200 to

be ins talled in the coming fiscal year. The

US DOT Action Plan specifically states: when

improving one crossing (i.e., grade

separation or crossing improvements)

consider the elimination of the adjacent

crossing. The closure of SE 222nd Street

reflects the gui dance of the Federal

Railroad Administration's crossing

consolidation plan.

The elimination of the SE 222nd Street

crossing would positively impact rail

operations in the reduction of horn blowing

and the elimination of trains blocking the

roadway . The e limination of both of these

factors at this site would reduce complaints

received from motorists and nearby

homeowners.

25. Cliff Stayton, director of community affairs and

safety for CSX, testified that at any public crossing, federal

regulations requir e the operating railroad to sound the horn at

least 15 seconds but no more than 20 seconds before the train

enters the crossing. 4 / Mr. Stayton pointed out that here there

are three crossings within a half - mile of each other, each of

which requires the sou nding of the horn. Eliminating the

Crossing would reduce the nuisance factor of the horn to the

nearby residents.

26. As to the "excessive restrictions to emergency

vehicles resulting from closure" criterion , the Department found

that the closure of the Crossing would have no effect on

emergency vehicle access. Alachua County provides EMS service

to Hawthorne, and the vehicles come from a county fire and

rescue station eight miles west on S.R. 20. The vehicles could

access any residence on SE 222nd Stre et by taking S.R. 20 to

U.S. 301. The hospitals serving Hawthorne are all located in

the Gainesville area. Ms. Bordelon testified that emergency

vehicles use ma in arterial roads suc h as U.S. 301 rather than

urban local roads such as SE 222nd Street, and the closure of

the Crossing would have no adverse impact to the provision of

emergency services on either side of the Crossing .

27. As to the "design of the grade crossing and road

approaches" criterion , the Department found that the Crossing's

timber and asphalt surface provides a rough transition from the

road surface, with noticeable dipping and bouncing. The

approaches to the Crossing are cracked and patched, adding to

the rough transition. As noted above, the uneven surface may

cause a driver to pay more attention to choosing a smooth path

over the Crossing rather than determining whether a train is

approaching. Though there are no recorded accidents at the

Crossing, its design and state of repair lead to the finding

that closing the Crossing would offer at least some incremental

safety enhancement to motorists.

28. As to the "presence of multiple tracks and their

effect on railroad and highway operations" criterion ,

Ms. Bordelon testified that it did not apply in this case

because the Crossing has only a single track.

29. In addition to his argument that his practice will be

inconvenienced by having access to the park cut off, Dr. Henry

alleged that disabled persons may have difficulty accessing his

clinic via wheelchair if they are forced to cross at U.S. 301

rather than at the Crossing. Dr. Henry alleges that this

constitutes a failure to offer a reasonable accommodation under

the A mericans with Disabilities Act. No direct evidence was

presented to support this speculative claim .

30 . In summ ary, the Department's findings leading to the

recommendation that the Crossing be closed are supported by

competent substantial evidence. Mr. Henry's concerns regarding

the impact of closure on his business were sincere and well

expressed at the hearing, but were insufficient to rebut the

Department's prima facie showing that the criteria set forth in

r ule 14 - 57.012(2)(c) have been satisfied and the Crossing should

be closed.

CONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has

jurisd iction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2012).

32 . Section 335.141(1), Florida Statutes, provides as

follows:

(1)(a) The department shall have regulatory

authority over all public railroad - highway

grade crossings in the state, including the

authority to issue permits which shall be

required prior to the opening and closing of

such crossings.

(b) A " public - railroad hig hway - grade

crossing " is a location at which a railroad

track is crossed at grade by a public road.

33. In furtherance of its regulatory authority, the

Department has promulgated Florida Administrative Code Rule 14 -

57.012, which provides as follows, in re levant part:

(1) Purpose. To establish standards for

the opening and closing of public railroad -

highway grade crossings. The objectives of

these uniform standards will be to reduce

the accident/incident frequency and severity

at public railroad - highway grade crossings,

and improve rail and motor vehicle operating

efficiency.

(2) Opening and Closing Public Railroad -

Highway Grade Crossings. The Department

will accept applications for the opening and

closing of public railroad - highway grade

crossings fro m the governmental entity that

has jurisdiction over the public street or

highway; any railroad operating trains

through the crossing; any other applicant

for a public railroad - highway grade crossing

provided there is in existence an agreement

between the applicant and governmental

entity to assume jurisdiction as a public

crossing. The Department, on behalf of the

State of Florida, will also open or close

public railroad - highway grade crossings in

accordance with the criteria set forth

herein. Closure ap plications will also be

accepted from individual citizens or groups,

such as neighborhood associations. Opening

and closure of public railroad - highway grade

crossings shall be based upon Notices of

Intent issued by the Department, Final

Orders of the Depa rtment following

administrative hearings conducted pursuant

to Chapter 120, F.S., or upon a Stipulation

of Parties executed by any applicant,

governmental entity, the appropriate

railroad, and the Department. The burden of

proof for the opening or closing of a

crossing is on the applicant. A Final Order

or a Stipulation of Parties concludes the

application process. Acceptance of any

application for processing by the Department

shall not be construed as indicating the

DepartmentÓs position regarding the

a pplication. If the preliminary review of

the application does not support the

crossing opening or closure, or the

application does not demonstrate a material

change of circumstances has occurred at the

crossing since the execution of a Final

Order or a St ipulation of Parties, the

applicant will be advised of these findings.

The applicant may choose to withdraw the

application or continue the process. If

withdrawn, the process is concluded. An

applicant may suspend an application at any

time. If the appl icant chooses to pursue

the opening or closure of the public

railroad - highway crossing, the railroad and

governmental entity having jurisdiction at

the location are notified and provided a

copy of the application. The governmental

entity should provide a public forum for

community involvement and contact affected

individuals or groups to obtain input on

impacts to the community. The expense of

crossing closures or openings, which shall

include installation, maintenance, and

replacement of grade crossing t raffic

control devices and grade crossing surfaces,

will be the responsibility of the applicant,

unless otherwise negotiated and accepted by

all parties.

* * *

( c) Closure of Public Railroad - Highway

Grade Crossings. In considering an

application to close a public railroad -

highway grade crossing, the following

criteria will apply:

1. Safety.

2. Necessity for rail and vehicle traffic.

3. Alternate routes.

4. Effect on rail operations and expenses.

5. Excessive restriction to emergency type

ve hicles resulting from closure.

6. Design of the grade crossing and road

approaches.

7. Presence of multiple tracks and their

effect upon railroad and highway operations.

34. In its P roposed R ecommended O rder, the Department for

the first time has rai sed the question of Mr. Henry's standing

to pursue this matter. Section 120.52(13)(b), Florida Statutes,

provides that a "party" includes any person "whose substantial

interests will be affected by the proposed agency action, and

who makes an appearance a s a party." To demonstrate a

substantial interest, the person must demonstrate: (1) that he

will suffer injury in fact which is of sufficient immediacy to

entitle him to an administrative hearing; and (2) that his

substantial injury is of a type or nature that the proceeding is

designed to protect. Agrico Chem. Co. v. Dep't of Envtl. Reg. ,

406 So. 2d 478, 482 (Fla. 2d DCA 1981). Further, a party must

demonstrate that the agency action will affect him individually

rather than as a member of the general pu blic. Grove Isle Ltd.

v. Bayshore Homeowners' Ass'n, Inc. , 418 So. 2d 1046, 1047 - 48

(Fla. 1st DCA 1982).

35. The Department argues that Dr. Henry has not asserted

that he will be individually affected by the closing of the

Crossing; rather, he suggests t hat his animal patients and their

owners will be inconvenienced by not having direct access from

the hospital to the park. The Department states that Dr. Henry

cannot assume standing on behalf of clients who may desire such

direct access. See Fla. Soc. o f Ophthalmology v. State Bd. of

Optometry , 532 So. 2d 1279, 1286 (Fla. 1st DCA 1988) (physicians

lack general authority to represent their patients' interests in

administrative proceedings ; physicians must allege that agency

action would prevent them from performing needed medical

services sought by their patients).

36. T he undersigned concludes that Dr. Henry is arguing on

his own behalf as well as that of his clients. Accepting at

face value his contention that his clients will be greatly

inconvenien ced by lack of access to the park, Dr. Henry may face

a significant loss of business as clients move on to more easily

accessible service providers after the closing of the Crossing.

37. However, this asserted business interest is not the

type of injury that this proceeding is designed to prevent. The

objective of this proceeding is " to reduce the accident/incident

frequency and severity at public railroad - highway grade

crossings, and improve rail and motor vehicle operating

efficiency ." Rule 14 - 57.012 (2) suggests that the local

government entity provide a public forum for community

involvement, and it requires that the presence of alternate

routes and emergency vehicle access be considered, but it does

not require the Department to consider the economi c impact of

railroad crossing closure to each individual business in the

vicinity. The Department is therefore correct in its belated

assertion that Dr. Henry lacks standing to bring this

proceeding.

38. Even if Dr. Henry had established his standing, CS XT

produced competent substantial evidence that rail efficiency and

safety would be enhanced by closure of the Crossing.

39. The Department considered each of the seven criteria

listed in r ule 14 - 57.012(2) for closure of a public railroad -

highway grade c rossing. The evidence produced at hearing

established that the Crossing is not necessary for vehicular

traffic. Alternate routes are readily available and have

sufficient capacity to accommodate the small number of cars that

currently use the Crossing. Closure of the Crossing will

enhance safety and have a positive effect on rail operations and

expenses. The Crossing is not necessary to accommodate

emergency vehicles, which can reach the area via alternate

routes. The design of the grade crossing and r oad approaches,

with the lack of active signalization and rough surface,

supports the decision for closure, particularly given the

proximity of two well - designed crossings with active

signalization. Multiple tracks are not present and therefore

are not a consideration.

40. The Department's initial determination that the

Crossing should be closed was correct and should become final.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Tra nsportation enter a

final order approving the requested permit for closure of public

railroad - highway grade crossing 627445 - K located at SE 222nd

Street in Hawthorne, Florida.

DONE AND ENT ERED this 26th day of October , 2012 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26 th day of October , 201 2 .

ENDNOTES

1 / Joint Exhibit 1 was the Notice. Joint Exhibit 2 was an

undated Addendum to th e Notice. These exhibits were also

admitted as Department Exhibits 3 and 4.

2 / All references to the Florida Statutes are to the 2010

edition, unless otherwise noted.

3 / The "Part 130" reference is actually to 23 U.S.C. § 130,

which sets forth the for mula for the distribution of federal

funds to the states for elimination of hazards at railway -

highway crossings , as well as the incentive program for closure

of at - grade crossings. The implementing rules may be found at

23 C.F.R. §§ 646.200 - 646.220.

4 / See 49 C.F.R. § 222.21(2) .

COPIES FURNISHED :

Audrie Malone Harris, Esquire

Audrie M. Harris, P.A.

Post Office Box 358595

Gainesville, Florida 32635

Sara Frances Holladay - Tobias, Esquire

McGuireWoods, LLP

Suite 3300

50 North Laura Street

Jacks onville, Florida 32202

David Petrano, Esquire

11502 Southeast U.S. Highway 301

Hawthorne, Florida 32640

Jeffrey York, Esquire

McGuire Woods, LLP

Bank of America Building, Suite 3300

50 Laura Street

Jacksonville, Florida 32202

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Talla hassee, Florida 32399 - 0450

Gerald B. Curington, Gen eral Co unsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Ananth Prasad, Secretary

Department of Transportation

Haydon Bur ns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to thi s Recommended Order should be filed with the agency that

will issue the Final Order in this case.